Protection to Women under Industrial Laws- A Myth or Reality

 This article was written by Priyanka Pareek College of Law and Governance Mody University

Introduction

Half of the Indian population too is women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all equities indignities, inequality and discrimination.[1] Status of women in different societies across the world has been different. No matter whether it is developed, developing or underdeveloped society women have always occupied a special position and also in every present and contemporary societies the position of women have always been discriminatory and they have been one of the weakest sections of the society as nearly all the societies in the world have always been male-dominated.

This position of women gave rise to various movements all over the world and there came the concept of ‘Feminism’. Feminism is a collection of social theories, political movements, and moral philosophies opposing, varied and confliction views largely motivated by the experience of women, with reference to inequalities in terms of social, political and economic backdrop.[2] In the light of this concept various laws have been enacted for the protection of women and various rights have been given to women so as to uplift them. Various declarations have also been made in this behalf and various civil and political rights have been to women along with the basic human rights.

There existed a social disparity in the society and in order to attain social equality and justice various laws were made to preserve and protect the rights of women. The constitution makers were also very concerned about this and hence inserted various provisions for women and empowered the pass various laws and amended the existing laws so that women have a better position in the society. After all these efforts of the state women now have a stronger and an improved position in the society.

This change was not only restricted to some sectors but to almost every important sector one such sector was the labour and industrial laws. Gender equality in labour laws was one of the key ingredients to attain social justice and thus various provisions were made in these laws to protect the interest of women and also to remove gender discrimination, women were given various benefits, concessions, safeguards in order to provide security to women against various risks attached therein and also to provide them with special rights and remedies specially related to work in factories, mines and other industries.

Women and Industrial Law

Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle: ‘From each according to his capacity, to each according to his needs’.[3]  Social justice is necessary to maintain equality in the society and it is also very important for social and economic growth of any nation. Ensuring gender equality and protection of women’s interest in labour and industrial laws is one of the most crucial aspects in the process of attaining social justice.

Amongst laws which are vital to a nation’s life, which manifest a nation’s spirit, which bestow revolutionary and progressive values to jurisprudence and lift it from conservative to a progressive strata industrial law has acquired a place of pride. It can be asserted that it embraces on only labour and industrial matters but also social matters affecting children, women and other oppressed sections of the society.[4] One of the main objectives of the Constitution is to secure social, economic and political justice along with equal opportunities and status to all citizens irrespective of their sex. Also Article 15(3) of the Constitution empowers the state to make special provisions for women and children and hence the state has passed various laws to  protect the interest of women and also various benefits are provided to women like maternity benefits, prohibition of work in dangerous operations, equal pay for equal work and have received various benefits in following acts; The Factories Act, 1948, Mines Act, 1952, Employees State Insurance Act, 1948, Maternity Benefit Act, 1961 and Equal Remuneration Act, 1976.

According to various sources women in the country constitute a substantial chunk of the workforce and despite of the various laws to strengthen the position of women the participation of women in the labour force is decreasing day by day due to various reasons like they do not get job offers which suits their requirement this creates a disparity between what they do and what they are capable of doing apart from this security also becomes a very important factor as there have been various instances of sexual harassment at workplace and also the wok offered to women are mainly domestic work which come under the unorganized sector and hence they cannot avail the benefits that has been given to them. Women have to also deal with other issues like childbirth their domestic responsibilities which affect their work and hence women do not only need equal rights as men but also special protection.

Employment Opportunity and Equal Pay for Equal work

Equal opportunity refers to an equal chance of employment to both men and women it also means that both men and women have an equal access to work, have similar working conditions and are paid equal or equal work this also includes an equal chance for training for the acquired job, promotions and an equal pay to similar work. In the case of Jitendra Prasad Singh v. TELCO[5] the court held that the principles of equality are virtually in the nature of natural law and denial of equality would be against the article of equality, i.e. Article 14 of the Constitution. Promotion of equality in employment is a positive enforcement, unlike prevention of discrimination, which is a sort of negative right or negative equality. This involves breaking down both horizontal and vertical occupational segregation.[6]

Article 39 of the Constitution of India provides that the citizens, men and women equally, have the right to an adequate means of livelihood and also that there is equal pay for equal work for both men and women. This article clearly states that the state should make policies that provide equal work opportunity to the women workforce although it is the duty of the state to ensure equal work opportunities for both men and women but it does not create any compulsion on the state to do so.

Equal Remuneration Act, 1976 was enacted with an aim to provide equal remuneration to both men and women for same work or for work of a similar nature. Thos act imposes a duty on the employer to ensure that both male and female workforce is given equal opportunities and there is no discrimination solely on the grounds of sex. Section 5 of this act provides that while recruiting for the same work or work of similar nature the employer should not make any discrimination against women unless employment of women in that particular job is prohibited or restricted by any law. In case of Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa[7], the court held that in deciding whether the work is of is of same or similar nature and in ascending whether the differences are of any practical importance, the authority should take a broad view of the matter. This is because the very concept of similar work implies “differences in detail”. These differences should not defeat the claims of equality on trivial grounds, but look at the duties actually performed and those theoretically possible.

Despite of the various provisions of this act and other laws even today women does not have equal work opportunities and lower wages offered to women entrenches women to accept a lower cadre jobs even when they are qualified to get a higher post this acts as a major setback in the career advancement of women. More efforts are to be made to remove this disparity and still a concrete law is required that ensures equal wage and work opportunities for women.

Sexual Harassment at Workplace

Gender equality includes protection from sexual harassment and the right to work with dignity, which is a universal recognized basic human right. The common minimum requirement has received global acceptance. The international conventions and norms are, therefore of great significance in the formulation of the guidelines to achieve this purpose.[8] Sexual harassment is defined as any unwanted sexual advances, be it verbal or physical, as long as it is of sexual nature and is either used as leverage for favorable treatment at work or is interfering with an individual’s performance at work by creating a hostile work environment. Sexual harassment is inclusive of:

• Inappropriate remarks, jokes, or insinuations of a lewd or sexual nature
• Unwanted physical contact, including assault
• Lewd gestures and lecherous looks
• Compromising invitations.
• Requests or demands for sexual favors – including implicit or explicit threats of dismissal or other unfavorable treatment if such favors are refuse; also incentive of favorable treatment in return for such favors.

Sexual harassment at workplace is not only a problem related to the safety of women but it is also a violation of not only the fundamental right but also the basic human right of the women. It is the duty of each and every employer that such instances does not take place in place of employment and if something like this happens it is duty to get the offender punished and seek justice to the victim. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is enacted with the main aim of protection of women from sexual harassment at workplace and also to provide for prevention and redressal of complaints of sexual harassment.

Although there are various legislations to protect women from sexual harassment at workplace still there are many cases where no action is taken against the offenders or the women who has suffered such humiliation are often blackmailed by the employers on the grounds that they would lose not only their job but would be treated with disrespect in the society and hence many times women under such pressures does not report for such instances. To curb such practices and to empower women to speak against such evils state should take steps like making more stringent punishment for such crimes and also to educate women about their rights and also to make them aware about the various protections they have in case of any such incident.

Special Benefits Given to Women   

Women are provided with various other benefits also such as maternity relief under the Maternity Benefit Act, 1961 it includes benefits like maternity leaves in various jobs and other benefits whereby a women is given a leave from work which includes both the period before and after childbirth a women can take this leave and can join back the work after the childbirth. This act was enacted to protect the interest of pregnant and lactating women as working at the time of pregnancy can be dangerous for both the mother and child and hence it is the right of every woman to ask for maternity leave.

Apart from these various other benefits are provide to women like prohibition of work by women at certain place like under a mine as it can be dangerous to their health and also they are not physically fit to do work of that nature. Women working in night shifts also have various protections as it becomes the duty of the employer to ensure the safety of women working in his establishment.

Conclusion

It can be clearly seen that various national and international laws are enacted for the welfare of women and to protect the interest of women there have been movements towards the empowerment of women in labour law. There are various benefits given to women like equal employment opportunity equal pay for equal work, maternity benefits, protection from sexual harassment etc. but all these laws are still not sufficient to protect the interest of women still we need more laws and a strict implementation of the existing laws so that women can be uplifted in a true sense and more than the implementation of laws our country needs to develop a effective implementation of the redressal mechanism so that women can raise voice against the injustice suffered by them.

[1] Monica Chawla, Gender Justice Women and Law in India, ix ( 2013)

[2] Mamta Rao, Law Relating to Women and Children, 11 ( 3^rd ed., 2012)  

[3] L. Pochanna Appelwar v. State of Maharashtra, AIR 1985 SC 389

[4] G.M. Kothari, A Study of Industrial Law, (5^th ed., 2000)

[5] Jitendra Prasad Singh v. TELCO, 1999 2 LLJ 43 (Pat.)

[6] Neerja Gurnani, Standard for Women In Labour Law, 2015

[7] Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa, (1987) 2 SCC 469

[8] Vishaka v. State of Rajasthan,  (1997) 6 SCC 241